Bonti v. Ford Motor Co.

• Citation: 898 F. Supp. 391
• Decision Date: 13 September 1995
• Docket Number: No. 2:94-cv-224DS.,2:94-cv-224DS.
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Mary Scarsella BONTI, Individually and as Administratrix of the Estate of Arthur Paul Bonti, Plaintiff, v. FORD MOTOR COMPANY, Defendant.

898 F. Supp. 391

Mary Scarsella BONTI, Individually and as Administratrix of the Estate of Arthur Paul Bonti, Plaintiff, v. FORD MOTOR COMPANY, Defendant.

No. 2:94-cv-224DS.

United States District Court, S.D. Mississippi, Hattiesburg Division.

September 13, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas R. Frazer, II, Langston, Frazer & Sweet, Jackson, MS, for plaintiff.

David L. Ayers, Mark D. Jicka, Watkins & Eager, Jackson, MS, John R. Trigg, James D. Hinga, Parcel, Auro, Hultin & Spaanstra, P.C., Denver, CO, for defendant.

MEMORANDUM OPINION AND ORDER

PICKERING, District Judge.

This matter is before the Court on Motion for Summary Judgment filed on behalf of the Defendant. The Court, having reviewed the motion, the response, the briefs of the parties and the authorities cited and being otherwise fully advised in the premises finds as follows, to wit:

FACTUAL BACKGROUND

On or about February 13, 1986, the Plaintiff, Mary S. Bonti, and her husband, Arthur Bonti, purchased a Ford Bronco II in Hillsboro, North Carolina. On or about June 24, 1989, Mary Bonti and her husband left their home in Durham, North Carolina, where they had been residents for over twenty-five years, in the Bronco II headed for Marietta, Georgia. On Interstate 85 near Gaffney, South Carolina, the Bronco II rolled over in a one-vehicle accident and killed Arthur Bonti. Mary Bonti allegedly suffered personal injury in the accident.

Arthur Bonti's estate was probated in North Carolina after his death. Mary Bonti still lives in the State of North Carolina. The subject vehicle was designed by the Defendant at its corporate headquarters in Michigan. It was built in Kentucky and shipped to a Ford dealer in Hillsboro, North Carolina. As stated previously, the Plaintiff and her husband purchased the Bronco II from the dealer in Hillsboro, North Carolina, and maintained it at their home in Durham. Ford is a Delaware corporation which is qualified to do business in Mississippi and which has corporate headquarters and its principal place of business in Michigan.

The Plaintiff filed her complaint in this action on June 17, 1994, alleging negligence, breach of warranty, misrepresentation and strict liability against Ford as the manufacturer of the Bronco II, which she alleges caused her injuries and the wrongful death of her husband. Ford has filed this Motion for Summary Judgment asserting that Plaintiff's action is barred by the applicable substantive law of North Carolina and specifically its statute of repose which bars all products liability actions brought more than six years after the initial purchase of the product.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2549, 91 L.Ed.2d 265 (1986). A Judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). "The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. "With regard to `materiality', only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment." Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987).

In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the nonmoving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984).

The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir.1982). Once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir.1978). In other words, "the nonmoving litigant is required to bring forward `significant probative evidence' demonstrating the existence of a triable issue of fact." In re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir.1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed. R.Civ.P. See also, Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.

WAIVER OF AFFIRMATIVE DEFENSES

Plaintiff's first assertion is that the Defendant Ford Motor Company has waived its right to assert the affirmative defense of the North Carolina statute of repose by failing to plead it specifically in its answer as required by Rule 8 of the Federal Rules of Civil Procedure. In response the Defendant points to its "Third Defense" on the second page of its Answer which provides:

The Plaintiff's claims may be barred by applicable statutes of limitation of other states including, but not limited to, those of South Carolina and North Carolina.

Plaintiff's position is that the statute of repose is not a "statute of limitation." It is true that a statute of limitation acts to extinguish, after a period of time, one's right to prosecute an accrued cause of action while a statute of repose limits potential liability by limiting the time during which a cause of action can arise. But they are both "limitations" upon one's right to proceed with a specific cause of action. The effect is the same. The statute of repose places a limit on the time within which the cause of action can accrue while a statute of limitations places a limit on the amount of time one has to proceed on a cause of action once it has already accrued. Section 1-50 is found in a code section designated as a statute of limitations. See N.C.Statute Ann. § 1-50 (1993). However, the North Carolina courts have construed § 1-50(6) as a statute of repose and not as a statute of limitations, per se.

Rule 8(c) of the Fed.R.Civ.P. provides "In pleading to a preceding pleading, a party shall set forth affirmatively ... statute of limitations...." Rule 8(e) provides "(1) each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required." "All pleadings shall be so construed as to do substantial justice." Rule 8(f). As the Fifth Circuit has held, "The pleading of affirmative defenses is governed by the same liberal standards as those for a complaint. See 5 C. Wright & Miller, supra, § 1274 at 323." Marine Overseas Services v. Crossocean Shipping, 791 F.2d 1227, 1233 (5th Cir.1986).

Based on the foregoing, this Court is of the opinion that the Defendant sufficiently pled the affirmative defense of the North Carolina statute of repose. Having determined that Defendant pled the North Carolina statute of repose, the Court does not reach the question of waiver. Nevertheless, the Court would note that the Fifth Circuit in the case of Lucas v. United States, 807 F.2d 414 (5th Cir.1986) held:

Where the matter is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to comply precise with Rule 8(c) is not fatal. Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir.1983). That is, the defendant does not waive an affirmative defense if `he raised the issue at a pragmatically sufficient time, and the plaintiff was not prejudiced in its ability to respond.' Id. at 856.

Lucas, 807 F.2d at 417-418. Of course, "central to requiring the pleading of affirmative defenses is the prevention of unfair surprise." Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987). Simply put, when one can adequately confront and defend against an affirmative defense, there is no undue prejudice.

In the case at bar not only did the Defendant plead affirmatively the statutes of limitations of North Carolina and South Carolina, but it also has presented the issue of the statute of repose by way of summary judgment more than a year before the scheduled trial of this case. Plaintiff has fully responded to Defendant's Motion for Summary Judgment on that issue. The Plaintiff has not indicated that there is any information necessary to her to properly respond and defend against the affirmative defense of the statute of repose. Therefore, aside from the fact that the Court is of the opinion that the Defendant has properly pled the affirmative defense of the North Carolina statute of repose in the first place, the Court also finds that the Defendant raised the defense at a pragmatically sufficient time to allow the Plaintiff to respond without prejudice.

CHOICE OF LAW

This is a diversity action and, therefore, this Court is bound to apply the law of the forum state. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This includes...